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Abstract: Transcript of the Reasons for Sentence
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R. v. McLaughlin 2013 NWTSC 91 S-1-CR-2013-000085
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
MIKE PATRICK MCLAUGHLIN
__________________________________________________________
Transcript of the Reasons for Sentence delivered by
The Honourable Justice L.A. Charbonneau, sitting in
Yellowknife, in the Northwest Territories, on the 20th
day of November, A.D. 2013.
__________________________________________________________
APPEARANCES:
Ms. W. Miller: Counsel for the Crown
Mr. M. Martin: Counsel for the Accused
(Charge under s. 430 of the Criminal Code of Canada)
1 THE COURT: Earlier this week,
2 Mr. McLaughlin pleaded guilty to a count of
3 mischief over $5,000 and now it is my
4 responsibility to sentence him for that offence.
5 Counsel have presented a joint submission in
6 this case. It is well established in law that a
7 sentencing court is required to give a joint
8 submission very serious consideration.
9 Ultimately, the discretion to decide what
10 sentence should be imposed remains with the
11 Court, as I am sure Mr. McLaughlin's counsel told
12 him. But when a joint submission is presented,
13 unless it is clearly unreasonable, it should be
14 followed.
15 In this case, I have no difficulty at all
16 concluding that the position jointly presented by
17 counsel is reasonable. It is within the range of
18 sentences imposed for this type of offence in
19 this jurisdiction, as was demonstrated by the
20 cases that were filed. The joint position was
21 also well supported by very well articulated and
22 thorough submissions presented by both counsel.
23 So I will follow the joint submission in this
24 case, but I still want to spend a few minutes
25 explaining why I have concluded that the sentence
26 that was proposed - one-year imprisonment
27 followed by one-year probation - is appropriate,
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1 because I think reasons are important to put the
2 sentence imposed in some context.
3 The first important aspect of this, of
4 course, is the circumstances of what happened,
5 what Mr. McLaughlin has admitted that he did.
6 He admits that he set fires to two buildings
7 in Inuvik. They were both multi-unit complexes.
8 Each of these buildings was apparently abandoned
9 when this happened. The first fire was set on
10 July 20th, shortly after midnight, and the second
11 one was set two days later, July 22nd, during the
12 evening.
13 Both fires were brought under control within
14 a reasonably short period of time and the
15 buildings were not completely destroyed. The
16 owner of the building has not provided an
17 estimate of damages, nor has he filed a Victim
18 Impact Statement even though, I am told, he was
19 advised of his right to do so. But even without
20 that type of information and without the
21 specifics, Crown and Defence are in agreement
22 that whatever the exact figure of the damage was,
23 it was in excess of $5,000. I heard, also, that
24 the buildings have been boarded up and remain
25 vacant.
26 Mr. McLaughlin was arrested near the scene
27 of the second fire. He was highly intoxicated
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1 and he had a lighter and a can of Pam cooking oil
2 in his possession.
3 He gave two statements to the police where
4 he essentially admitted being responsible for
5 setting the two fires, although he was very
6 intoxicated on both occasions and had limited
7 recall of what happened. He explained, among
8 other things, that he had worked for the owner of
9 these buildings doing general repair work at one
10 of them. He had become concerned about the poor
11 conditions of the building. He considered that
12 they were unsafe for the community. Among other
13 things, he was concerned about sewage leaks from
14 the building. He had spoken to the owner about
15 these concerns, but the owner, he said, had
16 dismissed his concerns.
17 He has a limited recollection of the events,
18 but he was apparently drinking with another man
19 on the evening of July 20th. They had been
20 talking about how dangerous the buildings were.
21 The other man went in first and tried to start a
22 fire without success, and that is when Mr.
23 McLaughlin went in and lit a bag that was full of
24 rags on fire, and this time, evidently, it
25 worked.
26 He also admitted being responsible for the
27 second fire.
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1 I also heard that in addition to being
2 intoxicated with alcohol at the time, he was
3 taking medication as a result of an injury that
4 he had sustained some time before; the dosage of
5 his medication was still being adjusted at the
6 time of these events. He was not supposed to
7 take alcohol while taking this medication. The
8 combination of the alcohol and the medication may
9 have caused him to be more impaired than if he
10 had simply been drinking. Of course it is not
11 possible to know this for sure. In any event, he
12 does take responsibility for his actions.
13 The second important element in any
14 sentencing is the circumstances of the offender.
15 Mr. McLaughlin is 50 years old. He is originally
16 from Ontario but moved to the United States as a
17 young adult. There he ran his own business as a
18 painter and remodeler. Following a divorce in
19 2001, he moved back to Ontario and found
20 employment there. I heard he relocated to the
21 Yukon in 2006 and worked at camps as a head cook.
22 He was responsible, I heard, for large camps. At
23 the last job he held doing that, he was
24 responsible for the food for a camp of 300
25 workers. Then he took employment as a head cook
26 on the Alaska highway and moved to Inuvik in
27 2011.
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1 I also heard that he has done volunteer work
2 in every community where he has lived, including
3 Inuvik. He has volunteered at food banks,
4 homeless shelters, and by all accounts is someone
5 who has always made a positive contribution to
6 the communities that he has lived in.
7 He does have a criminal record. There are
8 entries from the '80s and then a gap from 1984 to
9 2001. Of course from what I have heard, this gap
10 corresponds to the time when he was not living in
11 Canada. So I realize the Canadian CPIC system
12 would probably not include information about what
13 may have gone on in other countries. But there
14 is no information before me about that period of
15 time, so I have to operate on the basis that for
16 almost three decades he was not in trouble with
17 the law.
18 Although the record has a number of entries,
19 it does not disclose crimes that are at the most
20 serious end of the scale. They are
21 property-related crime, a few convictions for
22 drinking and driving and breaches of court
23 orders. Without minimizing the seriousness of
24 those offences, the fact is he has never received
25 a jail term for any of them, except for a term of
26 one day in jail for failure to comply with a
27 recognizance in 2009, and a conditional sentence
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1 that he received in 2010 (a total of 60 days),
2 which is his most recent conviction. He has
3 never been incarcerated, and certainly not for as
4 long as the time he has been on remand since his
5 arrest. This will by far be the most serious
6 conviction on his criminal record, and it marks a
7 rather dramatic increase in the seriousness of
8 his conduct. That difference, unfortunately,
9 will be reflected in the sentence that he
10 receives for that offence.
11 Mr. McLaughlin has a problem with alcohol.
12 I am not sure he has completely come to terms
13 with it. I understood from this counsel that
14 Mr. McLaughlin recognizes that he is an
15 alcoholic. When he was given an opportunity to
16 address the Court, he said he does not drink all
17 the time but sometimes binges. He said he should
18 probably go to A.A. For what it is worth, I
19 think Mr. McLaughlin definitely should go to A.A.
20 and take whatever other steps are available to
21 him to try to address his relationship with
22 alcohol in a serious way.
23 I do not think it is in his interest not to
24 address this issue and I say this for a few
25 reasons. First, the record demonstrates that
26 alcohol has been an issue for him in the past.
27 Twice he was convicted for drinking and driving,
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1 including fairly recently in Whitehorse. He must
2 have been told at those sentencings that the
3 difference between a drinking and driving
4 incident that results in simply that charge and a
5 fine, and a drinking and driving incident that
6 results in someone getting killed in an accident
7 is often just a matter of pure luck. I do not
8 know if the other convictions on his record, or
9 some of them, are also related to drinking, but
10 there is a good chance that they might be. In
11 particular, the breaches. So even apart from the
12 events that I must sentence him for today,
13 alcohol has proven to be a problem for him.
14 Second, what he did in July 2013 was risk
15 his own health by consuming alcohol at a time he
16 was on medication that he was not supposed to be
17 mixing alcohol with. So he put himself at risk
18 in that sense. Third, and most importantly, how
19 he behaved under the influence of alcohol on
20 those occasions is very, very serious. He cannot
21 afford not to address his relationship with
22 alcohol, because, again, the consequences of what
23 happened here could have been far more serious.
24 This takes me to considering the principles of
25 sentencing and why this is such a serious
26 offence.
27 Proportionality is a fundamental sentencing
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1 principle and it means, in simple terms, that a
2 sentence should be proportionate to the
3 seriousness of the offence and the level of
4 responsibility of the offender.
5 This is a serious offence. The crime of
6 mischief is punishable by a maximum of ten years
7 in jail and there is no minimum penalty. That is
8 quite the range, and that is quite the range
9 because the offence itself also covers a wide
10 range of possibility about what type of conduct
11 can make out this charge both from the point of
12 view of how much damage can be caused and, more
13 generally, the seriousness of the circumstances.
14 Committing the crime of mischief by setting
15 a building on fire is, in my estimation, at the
16 more serious end of the spectrum for this
17 offence. Of course, some scenarios could be
18 worse. For example, if it was done with the
19 intention of hurting someone or if someone was
20 actually hurt. But if that happened, the offence
21 charged would probably be a different one.
22 If a property owner allows their property to
23 become a nuisance to others, to be dangerous, to
24 be bad for the environment or otherwise a
25 community hazard, there are lawful methods to
26 address this. From the facts I have heard, it
27 sounds as though there were real issues with
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1 these buildings. But the course of action chosen
2 by Mr. McLaughlin to deal with the situation was
3 completely inappropriate. It was high risk and
4 it was criminal, and I agree with the Crown that
5 the vigilante aspect of the conduct is of great
6 concern.
7 Whatever his reasons were, what
8 Mr. McLaughlin did was exceedingly dangerous for
9 his community. He is very lucky that nothing
10 more serious came of this. For example, what if,
11 unbeknownst to him, someone had snuck into
12 another unit in one of these buildings and had
13 been in there when they were set on fire? What
14 if children had gotten in there; or what if
15 teenagers had been having a party; or what if a
16 homeless person looking for shelter had been in
17 there sleeping; or what if people called to
18 respond to these fires had been injured; what if
19 the fire had not been controlled and had spread;
20 what if there had been another fire somewhere
21 else in the community, say, a house fire with
22 people trapped inside, and the response time had
23 been delayed because so many of the firefighters,
24 many of them volunteers, were already busy
25 attending to these other fires?
26 This type of offence, on its face, cries out
27 for a denunciatory and deterrent sentence. Even
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1 more so here because during submissions I was
2 told, remarkably, about two other recent cases
3 where similar things happened in the community of
4 Inuvik. I heard about an unreported decision
5 from the end of 2012, R. v. Dillon, where a
6 building belonging to the same owner was set on
7 fire. I have been given a copy of the decision
8 in R. v. Bernhardt, 2013 NWTSC 54, where the
9 offender was convicted after trial of setting a
10 vehicle on fire. The sentencing decision says
11 that the motive for the act was unclear but may
12 have been because the offender was angry at
13 someone for rejecting his advances and so he set
14 fire to a vehicle belonging to one of her family
15 members.
16 If there is any kind of sense in Inuvik or
17 elsewhere in this jurisdiction that under certain
18 circumstances it is an adequate course of action
19 to set things on fire as a means to resolve
20 disputes, exact revenge, or deal with abandoned
21 buildings or other property, that sense has to be
22 dispelled and denounced in no uncertain terms by
23 this Court, because, as I said, setting things on
24 fire is inherently dangerous.
25 It is aggravating in this case that this was
26 not done just once but twice. The response by
27 the Court has to be stern, and that is why even
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1 for an offender who does not have a significant
2 criminal record, has a good work history, and
3 could be a very productive, valued member of his
4 community, a jail term is still required.
5 There are also mitigating factors to
6 consider, though. The first is that
7 Mr. McLaughlin has pleaded guilty to this
8 offence. This has saved court time and
9 resources. I heard there would have been several
10 witnesses called at his trial and that there
11 would have been a requirement for a voir dire
12 into the admissibility of his statement. Now
13 that court time can be used to deal with other
14 matters, and there are many other matters that
15 need to be dealt with on the Court's pending
16 list.
17 In addition to saving resources, and very
18 significantly, the guilty plea signals a
19 willingness to take responsibility and the
20 expression of remorse. In this case the guilty
21 plea is not the only indication of that. I heard
22 that very early on during the court process there
23 were discussions between counsel about resolving
24 this matter without the necessity for a trial. I
25 also heard Mr. McLaughlin waived his preliminary
26 hearing, so no witnesses ever had to testify
27 about this. In addition, from the start, he
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1 cooperated with the police. All of that is
2 consistent with him being remorseful and willing
3 to take responsibility for his actions. So that
4 is mitigating.
5 Although the plea does come many months
6 after he was charged, given everything else I
7 have heard, given his waiver of the preliminary
8 hearing and how this matter evolved and the
9 direction it took from the start, I do agree that
10 Mr. McLaughlin should receive the maximum credit
11 for his guilty plea.
12 I must also consider that he has been in
13 custody since his arrest, a period of four
14 months. I heard that one week of that was spent
15 in RCMP cells in Inuvik and the rest was at the
16 North Slave Correctional Centre. I heard that he
17 has put his cooking abilities to good use and has
18 volunteered his work at the kitchen at the
19 correctional centre during his time on remand,
20 and I also heard that his counsel obtained
21 information from his case manager who described
22 Mr. McLaughlin as the "easiest prisoner to deal
23 with". There were no concerns about his
24 behaviour while on remand, and there is little
25 doubt that he would have earned all the remission
26 that he might have been entitled to had he been a
27 serving prisoner. I am satisfied that it is
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1 appropriate to grant him enhanced credit for the
2 time he has spent on remand.
3 I hope that I have made it very clear,
4 however, that Mr. McLaughlin's motive for doing
5 this is not a mitigating factor. Acting in this
6 way because a person thinks it is for the greater
7 good is not mitigating. The element of vigilante
8 justice that I already referred to underscores
9 the need for a denunciatory and deterrent
10 sentence. It does not assist an offender in
11 justifying a more lenient sentence. It provides
12 an explanation for the conduct but not one that
13 mitigates sentence, and that is because there is
14 a significant risk that others might be inclined
15 to take justice into their own hands if the
16 courts were to signal in any way that having a
17 so-called good reason for doing something will
18 result in lesser punishment, particularly when
19 the action in question is so inherently
20 dangerous.
21 For all those reasons that I have been
22 talking about, this is a serious offence of
23 mischief and it calls for a term of
24 incarceration.
25 The sentence that was jointly proposed by
26 counsel is fit in all the circumstances. And in
27 considering, among other things, the Bernhardt
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1 case that was filed that I have already referred
2 to as well as R. v. McNeely, 2007 NWTSC 82, those
3 cases do support the range that is being sought.
4 There are other orders that have been sought
5 and I will address now those orders and I want to
6 set briefly out some comments with respect to
7 them.
8 The first is with respect to probation. It
9 is jointly recommended that Mr. McLaughlin be on
10 probation for one year. The Crown asked that
11 there be a number of conditions on this order and
12 defence agrees that those conditions are
13 reasonable.
14 During the hearing, I raised with counsel
15 the question of the requested complete
16 prohibition from alcohol. I am always concerned
17 about those types of conditions in the event that
18 I am dealing with someone who is not capable of
19 total abstention. At the same time, if this is
20 the kind of conduct that Mr. McLaughlin is
21 capable of when he drinks alcohol, preventing him
22 from doing so may be an important component of
23 protecting the public. And he has said that he
24 is not someone who drinks all the time. He says
25 that stress can sometimes lead him to drink and
26 when he does, he does to excess.
27 His counsel has explained there are certain
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1 factors in Mr. McLaughlin's life right now, in
2 relation to the health of his father, that may
3 bring some stressors to him in the foreseeable
4 future. More specifically, that his father is
5 ill, that Mr. McLaughlin is the executor of the
6 will, and if something should happen to his
7 father, that would inject some stressful elements
8 in his life. On the other hand, if that were to
9 happen and he had those responsibilities, it
10 really would not be a time where he could afford
11 to go on a binge because then he could not carry
12 out those responsibilities.
13 So I have decided to include a no alcohol
14 condition in the probation order but not for the
15 full year. It is the Court's hope that
16 Mr. McLaughlin will make the choice to continue
17 to abstain beyond the time where he will be
18 required to abstain by the probation order. But
19 after having spent a long time in custody, I do
20 think it is helpful to mandate him not to drink
21 for a period of time after his release to give
22 him that added incentive to stay dry while he
23 gets himself back into a more normal pace of
24 life, finds work, and hopefully goes on with
25 positive activities he can engage in.
26 The next issue that was raised was the
27 question of the DNA order. The Crown has sought
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1 one. Mischief is a secondary designated offence
2 for which a DNA order can be made. The Code
3 provides that such an order can be made if the
4 Court is satisfied that it is in the best
5 interests of justice to do so. Paragraph (3) of
6 Section 487.051 says what factors are to be
7 considered and it reads: In deciding whether to
8 make the order, the court shall consider the
9 person's criminal record, whether they were
10 previously found guilty or not criminally
11 responsible for a designated offence, the nature
12 of the offence, the circumstances surrounding its
13 commission and the impact that the order would
14 have on the person's privacy and security of the
15 person and the Court shall give reasons for its
16 decision.
17 I had to consider this issue in R. v.
18 Gosselin, [2009] N.W.T.J. No. 2, in the context
19 of a narcotics case where the offence was a
20 secondary designated offence. The Crown was
21 seeking the order and the defence was opposing
22 it. At paragraph 60 to 64 of that decision, I
23 referred to the applicable principles. In that
24 case, the Crown was relying primarily on the
25 seriousness of the offence in support for its
26 application, and, in the end, I declined to make
27 a DNA order. The Court also considered this
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1 issue in R. v. Bernhardt, supra, at paragraphs 16
2 and 17. It seems that in that case the
3 seriousness of the offence, again, was the main
4 reason why the order was being sought and was the
5 main reason that the order was made.
6 I have considered the factors that are set
7 out in the Code. I do recognize that the offence
8 committed was serious and I have taken into
9 account Mr. McLaughlin's criminal record. There
10 is no indication, however, in that record that he
11 has committed this type of offence or any offence
12 serious enough to warrant his actual
13 incarceration before.
14 I recognize, as did the Court in Bernhardt,
15 that DNA is a useful investigation tool and that
16 DNA procedures are not particularly intrusive.
17 But the usefulness of the tool and the
18 non-intrusive nature of the proceeding could be
19 invoked in every case. Yet, Parliament has
20 chosen to distinguish between primary and
21 secondary offences and has attached different
22 tests to be met when orders are sought in one
23 situation and in the other. The Court did make
24 the order in Bernhardt in a situation that
25 involved setting something on fire. But in that
26 case, it is important to note that the offender
27 did not oppose the making of the order. On the
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1 whole, I have considered this and I am not
2 satisfied that a DNA order should be made, so I
3 decline to make one.
4 The next issue is the question of the victim
5 of crime surcharge. The law has now changed and
6 removes the possibility of waiving the surcharge
7 for hardship reason, but that change does not
8 have a retroactive effect. So I do, in this
9 case, have discretion to waive the surcharge.
10 Considering that Mr. McLaughlin has been on
11 remand since last July and that he was unemployed
12 and essentially homeless at the time of his
13 arrest, and considering that he will spend some
14 further time in custody, I am satisfied that
15 imposing a victim of crime surcharge on him would
16 result in hardship, so I decline to do so.
17 Stand up, please, sir. Sir, for the reasons
18 that I have given, I do agree with the joint
19 submission, so that a sentence of imprisonment of
20 one year is fit. For the four months that you
21 have spent in pre-trial custody, I am going to
22 give you credit for six months. So there will be
23 a further term of imprisonment of six months.
24 You can sit down.
25 I have given Mr. McLaughlin the maximum
26 credit that I am permitted to give under the law.
27 It is not something I do every time someone has
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1 behaved well in jail and would have earned
2 remission. I have done so here because I am
3 satisfied it is justified given his conduct in
4 the jail, the contribution he made through his
5 work in the kitchen, the fact that he has never
6 been sentenced to incarceration before, the fact
7 some of his remand time was spent in cells in
8 Inuvik, and everything else I have heard about
9 his circumstances.
10 I think Mr. McLaughlin was quite right when
11 he said earlier this week that being in jail is
12 really a waste of time. I really think you are
13 right, sir. It is a waste of time, it is a waste
14 of your abilities, and I really hope that I will
15 never see you in a courtroom again, and that no
16 other judge will either.
17 The jail term will be followed by a term of
18 probation for one year. This is to assist you in
19 your integration in the community. You have
20 never spent as much time in custody, as far as I
21 am aware at least, and it will be a transition
22 for you to regain your freedom.
23 The purpose of the probation is to help you,
24 not to set you up for a breach, as I have said
25 before. It is intended to assist you in getting
26 counselling and help to address whatever issue
27 you have with alcohol and whatever other
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1 underlying issues made you act in this reckless,
2 very dangerous way.
3 I say again, you are very lucky that there
4 were not more serious consequences to this. I
5 hope that it is a gigantic wake-up call for you
6 about your relationship with alcohol and the need
7 to address it.
8 From what I have heard, there are a lot of
9 positive things that can be said about you. I
10 hope that when you are released, you will be able
11 to focus on that. Not just because if you commit
12 crimes obviously it would be not good for the
13 community and for whomever you commit these
14 crimes against, but also because it would be very
15 bad for you. Because with this conviction and
16 this sentence on your record, if you are in
17 trouble with the law again, you can expect the
18 sentences will just get longer and longer.
19 The conditions of your probation are going
20 to be simple. You are to report to a probation
21 officer within 48 hours of release. You are to
22 have no contact directly or indirectly with Talal
23 Khatib for reasons that I think are obvious. You
24 are to take counselling as directed, including
25 alcohol counselling. I am going to direct that
26 you abstain absolutely from the consumption or
27 possession of alcohol for the first four months
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1 of your probation order. As I said, I hope you
2 continue to abstain after that, but I have
3 decided to make the abstention period shorter
4 than the full year of probation. This is to give
5 you an additional incentive to address this
6 issue. I have done so because you have told me
7 that you have gone for long periods of time
8 without drinking.
9 It is important that you understand that if
10 you reach a point where you think you cannot
11 comply with this condition, you need to contact
12 Mr. Martin. There is a process that can be done
13 to seek an amendment of the condition of
14 probation. But what you cannot do is simply
15 ignore the condition, because that is a separate
16 offence and more trouble. So I hope you will not
17 make this application, but if it becomes
18 impossible to comply with this condition, there
19 is a mechanism, and Mr. Martin can explain that
20 to you, whereby you can ask the Court to change
21 it for whatever reasons might be applicable at
22 that time.
23 There is A.A. in jail. I know that. I am
24 sure there is A.A. in Inuvik as well. So perhaps
25 a good strategy would be to begin now to try to
26 address this so that you have something to work
27 from when you are actually released.
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1 There is also a condition -- I wanted to
2 ask you, Ms. Miller, you requested a condition
3 that he not attend -- I think you said 7 to 11
4 Inuit Road. I notice one of the buildings was
5 called 7 and 9 and the other one was called 7 and
6 11.
7 MS. MILLER: Yes, Your Honour. I believe
8 -- excuse me. I believe that reflects the
9 various --
10 THE COURT: Addresses?
11 MS. MILLER: -- addresses of the
12 multi-unit.
13 THE COURT: Seven to eleven Inuit Road?
14 MS. MILLER: Yes, Your Honour. And I
15 believe that is just one building.
16 THE COURT: Okay. So that is how it
17 should be worded then, Mr. Clerk. And that is
18 the condition that you not attend 7 to 11 Inuit
19 Road.
20 Is there anything that I have overlooked,
21 Counsel? Mr. Martin?
22 MR. MARTIN: No, I don't think so, Your
23 Honour.
24 MS. MILLER: No thank you, Your Honour.
25 THE COURT: So I reiterate, Counsel, my
26 thanks to both of you for your very helpful
27 submissions and for your work resolving this
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1 matter. Mr. McLaughlin, I hope that things go
2 better for you --
3 THE ACCUSED: Thanks.
4 THE COURT: -- from this point.
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You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.